State Consumer Disputes Redressal Commission
Hdfc Ergo General Insurance vs Jagat Ram Dobhal on 16 August, 2022
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
FIRST APPEAL NO. 130 / 2018
HDFC ERGO General Insurance Company Limited
having Regional Office at Stellar I.T. Park, Sector-62
Noida, U.P. through Manager (Legal)
...... Appellant / Opposite Party
Versus
Sh. Jagat Ram Dobhal S/o Sh. Dharam Dutt Dobhal
R/o Village Kunna, Tehsil Chakrata
District Dehradun
...... Respondent / Complainant
Sh. Sudhanshu Dwivedi, Learned Counsel for the Appellant
Sh. S.L. Thapliyal, Learned Counsel for Respondent
Coram: Hon'ble Mr. Justice D.S. Tripathi, President
Mr. Udai Singh Tolia, Member-II
Dated: 16/08/2022
ORDER
(Per: Justice D.S. Tripathi, President):
This appeal under Section 15 of the Consumer Protection Act, 1986 has been preferred against the impugned judgment and order dated 28.07.2018 passed by the District Consumer Disputes Redressal Commission, Dehradun (in short "The District Commission") in consumer complaint No. 182 of 2015; Sh. Jagat Ram Dobhal Vs HDFC ERGO General Insurance Company Limited, by which the consumer complaint was allowed and the appellant - opposite party was directed to pay compensation of Rs. 2,07,289/- to the respondent
- complainant together with towing charges of Rs. 35,000/- and litigation expenses of Rs. 5,000/-, within a period of 30 days', failing which the complainant was further held entitled to interest @9% p.a. on the aforesaid amount from the date of institution of the consumer complaint till payment.2
2. Facts giving rise to this appeal, in brief, are that according to the consumer complaint, the respondent - complainant is the registered owner of 3-DX JCB machine (Excavator) bearing registration No. UK16-CA-0209, which was insured with the appellant - opposite party for the period from 28.02.2015 to 27.02.2016 at an IDV of Rs. 20,90,000/-. During the currency of the insurance policy, on 12.05.2015, while the JCB machine was being used for construction of road at a place near Goraghati on Goraghati Rangau Motor Road, all of a sudden, retaining wall collapsed and the insured vehicle fell in the gorge. Intimation of the accident was given by the villagers to the Revenue Inspector, who visited the spot and submitted report that the vehicle had fallen into 60 feet deep gorge and there has not been loss of any human life. The intimation of the accident was telephonically given to the insurance company. The official of the insurance company told the complainant to bring the vehicle to service station by towing it from the accident site, where the surveyor will assess the loss and submit the estimate of repairs with the insurance company. The complainant submitted an estimate of repairs to the tune of Rs. 2,90,194.50/- with the insurance company. Thereafter, the complainant submitted copy of driving licence of the driver of the vehicle. The complainant requested the insurance company on several occasions for payment of the claim amount, but all in vain. The complainant also suffered a loss of more than Rs. 50,000/-, on account of the vehicle being parked in the workshop. The complainant sent a legal notice dated 12.05.2015 through his counsel to the insurance company and thereafter, filed the consumer complaint before the District Commission.
3. The appellant - insurance company filed written statement before the District Commission, wherein it was pleaded that upon 3 receipt of intimation of accident of insured vehicle, the insurance company appointed Sh. Anoop Puri, Insurance Surveyor & Loss Assessor, to assess the loss. The said surveyor submitted his report dated 05.07.2015 to the insurance company, thereby assessing the loss at sum of Rs. 55,235/-, subject to terms and conditions of the insurance policy. Upon verification of driving licence of Sh. Amit Singh, it was found that he was authorised to drive LMV (NT); LMV-GV(TR) and LMV CAB (TR), but the same was invalid for driving JCB excavator, unladen weight whereof is 7460 kgs. and laden weight is 7460 kgs. Hence, the complainant - insured has violated the terms and conditions of the insurance policy. The driving licence clause mentioned in the policy mentions person or class of persons entitled to drive, according to which, the driver should hold effective driving licence at the time of accident and is not disqualified from holding or obtaining such a licence. Since the driver was not possessing a valid and effective driving licence at the time of accident, hence the claim was not payable by the insurance company and was rightly repudiated through letter dated 01.07.2015. No deficiency in service has been committed by the insurance company.
4. After giving opportunity of hearing to the parties, the consumer complaint has been decided by learned District Commission vide impugned judgment and order dated 28.07.2018, thereby allowing the consumer complaint in the above terms. Feeling aggrieved, the appellant - insurance company has preferred the instant appeal.
5. We have heard rival arguments advanced by learned counsel for the parties and perused the record.
6. It is admitted fact that the JCB vehicle in question was insured with the appellant - insurance company for the period from 4 28.02.2015 to 27.02.2016. It is also admitted that the JCB vehicle met with an accident during the currency of the insurance policy. The claim so preferred by the complainant with the insurance company, was turned down / repudiated by the insurance company per letter dated 01.07.2015 on the ground that upon verification of the driving licence of the driver - Sh. Amit Singh, it was found that the driver was not holding a valid and effective driving licence on the date of the accident to drive the insured JCB vehicle.
7. Learned counsel for the appellant - insurance company submitted that at the time of accident, the insured vehicle was being driven by Sh. Amit Singh, as has also been stated by the surveyor in his report and since the said driver was not possessing a valid and effective driving licence to drive the subject vehicle, hence the insurance company is not liable to pay any compensation. Per contra, learned counsel for respondent - complainant submitted that the stand taken by the insurance company that at the relevant time, the insured vehicle was being driven by Sh. Amit Singh, is, prima facie, incorrect, as the vehicle was being driven by Sh. Anil Dutt Joshi and Sh. Amit Singh was deployed on the insured vehicle as helper / assistant. In support of his submission, learned counsel drew our attention to the report dated 12.05.2015 submitted by the Revenue Sub-Inspector, Area Barontha Khabo, Chakrata. A copy of the said report is on record being Paper No. 25. In the said report, the said official has clearly stated that on inquiry, it was gathered that the vehicle / machine was being driven by Sh. Anil Dutt Joshi and the inquiry further transpired that Sh. Amit Singh Rawat (Sh. Amit Singh), Assistant Driver / Machine Operator was also sitting in the vehicle at the time of accident and both the said persons sustained grievous injuries. We do not find anything to disbelieve the said report, as the same has been submitted by an independent authority and is dated 5 12.05.2015, the date of the accident itself and has been submitted by the authority / official, who first visited the accident site after the occurrence. Thus, from the documentary evidence available on record, it is clearly proved that at the time of accident, the vehicle was being driven by Sh. Anil Dutt Joshi and the stand to the contrary taken by the insurance company, is beyond record and can not be accepted as such.
8. Now, we shall advert to the validity aspect of the driving licence of the driver. The copy of the driving licence of Sh. Anil Dutt Joshi S/o Sh. T.S. Joshi, R/o Kwasa, Chakrata, District Dehradun is on record (Paper No. 22). By way of the driving licence, the said driver has been authorised to drive MCWG (NT); LMV (NT); TRANS (TR) and PSVBUS (TR). The validity date of driving transport vehicles is from 17.12.2013 to 16.12.2016, which covers the date of the accident.
9. Thus, from above, it is clear that the driver was authorised to drive LMV (NT). "LMV" means "light motor vehicle". From the registration certificate of the vehicle in question issued by Transport Department, Uttarakhand, copy whereof is available on record, it is clear that the unladen weight of the vehicle is 7460 kgs. and the laden weight is also the same.
10. 'Light Motor Vehicle" has been defined under Section 2(21) of the Motor Vehicles Act, 1988, which states that, "light motor vehicle"
means a transport vehicle or omnibus, the gross vehicle weight of either of which or a motor car or tractor or road-roller, the unladen weight of any of which, does not exceed 7,500 kilograms. As is stated above, the unladen and laden weight of the JCB vehicle in question is 7,460 kilograms, which is less than 7,500 kilograms. Hence, the 6 vehicle in question falls under the category of "light motor vehicle"
and Sh. Anil Dutt Joshi, the driver was fully authorised to drive the same.
11. Hon'ble Apex Court in the case of Mukund Dewangan Vs. Oriental Insurance Company Limited reported in (2017) 4 Supreme Court Cases 663, has held that "light motor vehicle" would include a transport vehicle as per the weight prescribed in Section 2(21) r/w Sections 2(15) and 2(48). A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg, would be a light motor vehicle. It was further held that holder of a driving licence to drive class of "light motor vehicle" as provided in Section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg.
12. In Revision Petition No. 3262 of 2015; National Insurance Company Limited Vs. M/s Dharam Singh Mohar Singh, decided by Hon'ble National Commission vide judgment and order dated 31.05.2017, reported in 2017 (3) CLT 322, one of the grounds taken by the insurance company for repudiation of the claim was that the driver did not possess a valid licence at the time of accident. It was held by Hon'ble National Commission that the finding of both the Fora below to the effect that the Excavator fell in the category of light motor vehicle, as defined in Section 2(21) of the Motor Vehicles Act, 1988 and is also a non-transport vehicle, as per the Notification dated 05.11.2004, is based on correct analysis of Section 10(2) of the Motor Vehicles Act, 988, which details the types of licences issued and Rule 2(c)(ca) of the Central Motor Vehicles Rules, 1989, defining construction equipment vehicle. It was further held that there is no jurisdictional error in the impugned order, warranting interference in 7 exercising limited revisional jurisdiction and the revision petition filed by the insurance company was dismissed.
13. In view of the discussion made above, we are of the considered opinion that the driver of the subject vehicle was fully authorised and competent to drive the vehicle at the time of the accident and he was possessing a valid and effective driving licence. The stand to the contrary taken by the insurance company, was not at all justified and the insurance company was at fault by repudiating the true and genuine claim of the complainant on a false and flimsy ground.
14. So far as quantum is concerned, on behalf of the insurance company, it was stressed that the surveyor has assessed the loss to the tune of Rs. 55,235/- and learned District Commission was not justified in awarding the amount in excess of the said sum.
15. The complainant has filed the invoice issued by Continental Earthmovers, Haridwar Road, Upper Kuanwala, Dehradun, before the District Commission and a copy thereof was also filed by the complainant in this appeal along with his affidavit dated 06.07.2022. In the said invoice, the repair charges have been shown as Rs. 2,07,289.78/-, which is exactly the sum awarded by learned District Commission. This apart, the District Commission has awarded Rs. 35,000/- towards towing charges, invoice whereof was also filed by the complainant before the District Commission. The litigation expenses awarded by the District Commission are also reasonable.
16. The net result is that we do not find any infirmity in the impugned judgment and order passed by learned District Commission, 8 warranting interference by this Commission. This appeal fails and is liable to be dismissed.
17. Appeal is dismissed. No order as to costs.
(U.S. TOLIA) (JUSTICE D.S. TRIPATHI)
Member-II President
K